A.C.L.U.’s Own Arguments May Work Against It in Voting Rights Case

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The John J. Moran Medium Security Prison in Cranston, R.I. A lawsuit filed in that state by the American Civil Liberties Union objects to counting prisoners when drawing voting districts.CreditCreditAndrew Burton/Getty Images

WASHINGTON — The American Civil Liberties Union weighed in last month on this term’s big Supreme Court voting rights case, the one that will decide the meaning of “one person, one vote.” It took the position embraced by most liberals: that states should be allowed to count everybody in drawing election districts, including unauthorized immigrants, rather than only people eligible to vote.

But the group seemed to take the opposite position in a pair of recent lawsuits it filed in Rhode Island and Florida, in which it objected to counting prisoners when drawing voting districts. Counting prisoners in one district, the lawsuits said, “dilutes the voting strength and political influence” of eligible voters in other districts.

There may be good reasons for treating prisoners differently from other people who cannot vote. But it is also true that counting prisoners, often housed in rural areas, tends to amplify the power of Republican voters. Counting unauthorized immigrants, who often live in urban areas, generally helps Democrats.

What is certain is that neither side in the voting rights case, Evenwel v. Abbott, No. 14-940, has paid much attention to the more than two million people behind bars in the United States.

The plaintiffs in the case, a challenge to Texas’ decision to draw districts based on total population rather than the number of eligible voters, did not mention prisoners in their main brief.

“They are not concerned about the counting of ineligible voters, only certain types of ineligible voters,” said Nathaniel Persily, a law professor at Stanford who filed a brief supporting the state. “It seems to me a pretty strange constitutional argument that would say that noncitizens should be subtracted from the redistricting calculus but prisoners should be included.”

“I expect, however,” he added, “that when this comes up at oral argument, they will quickly admit that prisoners, too, should be subtracted from the apportionment count.” The case is set to be argued Dec. 8.

In a brief filed in April urging the Supreme Court to consider their appeal, the plaintiffs did quote, a little gleefully, a passage from the A.C.L.U.’s Florida lawsuit. “The ‘one person, one vote’ principle of the equal protection clause of the 14th Amendment mandates that each person’s vote shall be equal to that of his or her fellow citizens,” the A.C.L.U.’s lawsuit said, in language that could have come from the Texas plaintiffs.

Edward Blum, director of the Project on Fair Representation, the small conservative advocacy group that brought the Texas challenge, said he had expected the A.C.L.U. to respond when it filed its brief last month.

“It appears the A.C.L.U. doesn’t want the court to know that it is litigating the same kind of vote-dilution claim in Florida and Rhode Island,” Mr. Blum said.

Dale Ho, the director of the A.C.L.U.’s voting rights project, said the group had not addressed the prison suits because lawyers also involved in the Rhode Island case had filed a separate friend-of-the-court brief to the Supreme Court devoted to the question of “prison gerrymandering.”

Mr. Ho said the A.C.L.U. believed that prisoners, who are generally ineligible to vote if convicted of felonies, should indeed be counted in drawing election districts — but in the places where they used to live. He made the argument at length in a 2011 article in the Stanford Law & Policy Review.

Brenda Wright, one of the lawyers who filed the separate Supreme Court brief, said: “The basic distinction is that we’re addressing a problem that is based on where the population is counted. It is not based on an assertion that populations that can’t vote shouldn’t be counted.”

The brief, filed by Demos and the Prison Policy Initiative, rejected what it called “false parallels” between the prisoner cases and the Texas appeal. “The goal of reforming prison gerrymandering,” the brief said, “is not at all comparable to appellants’ goal of entirely excluding nonvoters from the population base.”

Still, the Florida and Rhode Island suits, brought on behalf of voters who said prisons in nearby districts were diluting the value of their votes, did not ask that the prisoners be counted elsewhere, only that they not be counted locally. That sounds similar to the claim in the Texas case.

On the other hand, the reasoning in a decision last year allowing the Rhode Island case to move forward drew important distinctions between prisoners and others who cannot vote in concluding that allocating all of the inmates at a prison in Cranston, R.I., to a single city ward “may not be constitutionally acceptable.”

The roughly 3,500 prisoners were not residents of the ward in any meaningful sense, Judge Ronald R. Lagueux wrote. They did not pay city taxes or use its parks and schools. Unlike children and unauthorized immigrants, whose interests may be represented by elected officials even though they cannot vote, prisoners are not a constituency of much concern to the typical politician.

California, Delaware, Maryland and New York have enacted laws that call for counting prisoners as residents of their home communities. But it is possible that in the Texas case, the Supreme Court could settle the debate about where prisoners should be counted by saying people not eligible to vote should not be counted at all.

For now, most states count prisoners where they happen to be housed. Given the size of the prison population, that distorts democracy, Mr. Ho of the A.C.L.U. said.

“If you take the total incarcerated population and put them in one state,” he said, “it would be the 37th-largest state and would be larger than the populations of Wyoming, Vermont and Alaska combined.”

A version of this article appears in print on , Section A, Page 18 of the New York edition with the headline: A.C.L.U.’s Own Arguments May Work Against It in Voting Case. Order Reprints | Today’s Paper | Subscribe